This means two things. First, they have removed one very clear unconstitutional problem from the Masters Club law suit which they were certain to lose on in court. Second, adult businesses can now locate by right in I-3 zones.

I have to give it to the members of P&Z. I would not have had the cajones to take the gamble that between the end of the moratorium and whenever they can change the adult zone layouts (if that's even on the radar) from all of I-3 to something a bit more constrained and less infectious nobody is going to apply to open a club or other adult business in one of the many I-3 zones. It also seems there is an expectation that the council's ordinances are going to dissuade businesses who might otherwise come to town from doing so. That's not a view I share. While a nuisance, the ordinances are wholly manageable and those parts which aren't will be challenged in court in short order.

P&Z members who voted against N. Meadows/Prestige Park and in favor of last nights application declined to comment on any specific reason for their decision.

I'll think about it a little more, maybe I'll come around. Or not. Video to follow. It's gonna take awhile at over 2 hours in length.

What I can't seem to get my head around is that all chances of fixing our regs before the lawsuits move forward and the moratorium expires is now gone. The administration has squandered 8 months and only put two plans before the P&Z which were both bad at best. Some of the blame sits with the P&Z for this too. Granted they were listening to their legal counsel and the Mayor et al., but when they saw that they weren't getting straight answers or constructive plans which meet all the requirements for a constitutional adult zone they had an obligation to make their own plans and start their own discussions. I'll give them a pass on this because apparently that's not how things are done in this town, but in the future let this serve as evidence that this is how things MUST be done in town, they'll happen no other way.

By now you've read or heard my plan for a Roberts St zone. If not it's in the video. It seems obvious that the reason a plan like this, despite having the least secondary impact for our neighborhoods, wasn't considered is because it effectively would have given Masters Club what they wanted. I can't help but believe that had Masters Club bought property in Prestige Park instead we'd have seen an adult zone created on Roberts St already and the I-3 wouldn't be an option from the town's perspective.

Granted I'm no adult entertainment mitigation professional, but then neither are our Mayor, Town Planner, Council Members, Development Director or P&Z members. You'd think that the town's attorneys would be the ones with the knowledge to make up for that fact, but as it turns out the word on the street is that the best constitutional/adult entertainment attorneys are representing the town's opposition, Masters Club LLC ( Kim Coleman, Norman Pattis constitutional lawyers) and Pitkin Street Entertainment LLC (Dan Silver 35 years representing adult businesses). Given those facts I suppose I may be equally as qualified to present a plan as anyone else so take this for what it's worth.

Before I go into it we need to analyze the problems that faced us at the beginning of this, what problems face us now, and what problems may face us after tonight.

East Hartford's adult zoning regulations have been unconstitutional for years and as of this moment are still unconstitutional. These are the particular reasons.

1. Zoning regulations can not be so restrictive that no, or an insufficiently small, area of opportunity exists for adult businesses to open. Multiple court cases have held that 4.5-5% of a towns land available for business use being available for adult businesses is sufficient to pass this test.
2. A special permit requirement is considered a prior restraint on free speech. Any special permit requirement for adult businesses cannot grant unbridled discretion to the decision making body. Unbridled discretion occurs when the particular requirements for approval or denial are not specifically defined in the special permit regulation or the terms used are ambiguous.
3. Any regulation of adult business must be on the merits of secondary effects. Any regulation which can be shown to be against the content of the speech, for example a regulation to ban strippers, is unconstitutional. A regulation based on reasonable expectations of secondary effects to ensure strippers don't cause or participate in illegal activities, such as a distance requirement from patrons, is perfectly acceptable.

Clearly the town understands this at least partially. To date the town has lifted most zoning requirements for adult businesses alleviating some of the problem from number 1.

Next the town applied for the establishment of two adult zones which would have had no special permit requirements alleviating 1 and 2 above in the North Meadows and Prestige Park area of town. This application was denied after the residents of town pointed out the absurdity of "regulating for secondary effects", which is the only way the town can regulate in this case, by placing these businesses in known residential areas.

Now the town has applied to lift the special permit requirements on adult businesses as allowed in I-3 zones which would, when combined with the lifting of regulations already completed, alleviate 1 and 2 above. This application also has the same fault of placing the permitted areas in known residential areas betraying the declared intention of mitigating secondary effects.

Unfortunately both plans on their face appear to be more directed towards complying with 1 and 2 above to win a particular lawsuit rather than complying with 1 and 2 above in an attempt to mitigate secondary effects.

Here is my plan and why it works.

1. Establish I-2A and B-3A zones which replace the current B-3 and I-2 zones on Roberts Street whose rules are identical to the existing zones with the addition of adult businesses as a special use. Remove adult businesses as a special use from I-3 zones.
2. Re-write section 503.3 special permit rules for adult businesses such that they define specific requirements which may be in addition to the requirements already imposed in the I-2A/B-3A zones such as minimum distances from schools and residential zoned properties in unambiguous terms.

That's it. This plan manages to satisfy all the constitutional requirements of regulating adult businesses. It provides an alternative location of sufficient size (5.5% of East Hartford's business use properties according to the 2003 plan of development) which is about as removed from neighboring residential areas as possible in East Hartford and whose location promotes interstate 84 as the natural travel route to and from any businesses as opposed to residential streets in the heart of town. It removes unbridled discretion from the special permitting process and most important of all it does not contradict itself in the claim of regulating for secondary effects.

Why do I think I'm right on this? That's the easy one. First, it's logical. Second I researched and this is what I found:

Mendon, Mass: This city has never had adult regulation until very recently. A neighboring town's battle and success in repelling a club based on clear zoning regulations inspired them to pass regulations. What Mendon has done is demonstrated three important parts of regulating adult businesses. In their regulations they established a strict zone for adult businesses to locate. They implemented a special permit requirement which has clearly defined requirements for approval. Most importantly they are proof that the moment you pass a regulation defining an adult zone you will get adult businesses. Mendon has had two applications covered by their new rules. The first was denied because it was just down the street from the defined adult zone. The second application is for a location inside the new adult zone which means if all the requirements are met by the applicant there will be a club there.

TJS of New York, Inc. v. Town of Smithtown: In this 2008 case the decision clarified for me somewhat what is needed in creating an adult zone.

Zoning ordinances may limit adult entertainment businesses to particular locations provided that "reasonable alternative avenues of communication" remain for adult oriented businesses" [case citations left out] Reasonableness requires an assessment of available alternatives and whether these alternatives afford a reasonable opportunity to locate and operate such a business.

The decision goes on to reference other decisions establishing guidelines to pass a test of "reasonable alternative avenues of communication". In short past decisions give guidance that around 5% of the total land available for business use, regardless of current use, availability or economic feasability must be available to adult businesses. The Roberts zone meets this test at 5.5% of the total land for business use.

New York State Office Of General Counsel: This legal memorandum expresses the importance and exclusivity of regulating adult businesses only for their secondary effects and surviving related legal challenges.

Blue Moon Entertainment, LLC, v. City of Bates City: The court was only overturning a previous decision here. Their findings in doing so are what interested me. They support my understanding that special permits are perfectly ok so long as they have a clearly defined set of conditions.

First Amendment
activities generally may be restricted by a zoning ordinance that contains “contentneutral”
regulations governing the time, place, and manner of expression, so long as
the ordinance is designed to serve a substantial governmental interest and does not
unreasonably limit alternative avenues of communication. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47 (1986). If, however, the ordinance requires that an
individual obtain a license or permit prior to engaging in the protected activity, then
the licensing scheme is analyzed as a “prior restraint” on the activity.

A licensing scheme generally
must provide narrow, objective, and definite standards to guide the licensing
authority, Shuttlesworth, 394 U.S. at 151, may only impose a restraint for a specified
and reasonable period, and must provide for prompt judicial review. Freedman, 380
U.S. at 58-59; FW/PBS, 493 U.S. at 228. It must not vest unbridled discretion in the
hands of a government official. FW/PBS, Inc., 493 U.S. at 225-26.

I've been thinking about the public hearing coming up on the 20th which will be a continued opportunity for residents to speak on the proposed changes to section 503.3 Special Permits which would make Adult Businesses a permitted use for all 177 I-3 zoned properties in town.

What I've been thinking is how does this I-3 concept compare to a Roberts Street zone. Conveniently at the last hearing the counsel for the P&Z had not calculated the maximum club density, despite the fact that they had done so for the N. Meadows/Prestige plan. What I found in figuring it out myself is that the current proposed I-3 plan can support up to an estimated 25 new adult businesses based solely on the 1000' between businesses requirement.

Here is a slightly more zoomed in map of the I-3 zones for more clarity.
I-3 Zones - Large

Now for your viewing pleasure here is the GIS map I threw together to represent a Roberts Street zone.
Roberts St Adult Zone

I'll guide you through my Roberts St map. First you'll notice the blue outline, these are 39 I-2/B-3 zoned parcels on Roberts St. Notice that the Masters Club property is not highlighted, though I have labeled it, this is because the GIS information is incorrect and lumps it together with a Church Street parcel. The total size of this adult zone would be 104 acres give or take a bit. You'll also notice I've put labels on some parcels. The labeled parcels are the parcels that an adult business would be required to purchase to achieve the maximum density of 4 clubs. I labeled these parcels based on their current ownership.

Moving left from the Masters Club parcel the first properties that comply with the 1000' buffer are labeled with their current owner CL&P. I don't foresee CL&P selling the properties to an adult business.

The labeled property to the far left is the first property that meets the 1000' requirement from the CL&P cluster. That property is owned by the State of CT. I can't see the State selling to an adult business either.

To the far right we see two parcels labeled vacant land. These are the first parcels to the right of the existing Masters Club property which meet the 1000' requirement. I doubt either are buildable for the purpose of an adult business being less than an acre each.

The result is that we've allocated 39 parcels of land comprised of 104 acres as permitted use, but due to the location of Masters Club, which is beyond the towns doing, maximum density could likely never be reached.

If we were to combine this zone with the deal that Mr. Chu has referred to previously we could potentially end up with both lawsuits dropped, the adult club use for both the Venus Lounge and Kahoots property being abandoned ending their grandfathering, and no club on Pitkin Street. This may or may not be feasible, but it ought to be investigated.

Well there you go Bill. I provided some nails and hopefully someone else can provide the hammer.

Here are the proposed ordinances being discussed.
Proposed Adult Business Ordinances

Some things that are unanswered for me are:

1. In Section 8-61 Definitions the following items are vague and undefined.

(13)
“sexually oriented business” means any enterprise where a substantial or significant amount of the business or activity is associated with the performance, depiction, display or exhibition of a semi nude body, sexual activity or sexual anatomical areas and shall include sexually oriented retail stores or theaters and sexually oriented cabarets or live semi-nude entertainment;

(16)
“sexually oriented retail store or theater” means any enterprise which has a substantial or significant amount of its inventory or floor space for, or of its income from, (A) media or novelty items, gag gifts, toys and paraphernalia that depict sexual activity, semi-nude bodies, or sexual anatomical areas or (B) novelty items, gag gifts, toys and paraphernalia that are designed or marketed for stimulating human genital organs, sexual arousal or sadomasochistic use except for medical films or publications or art or photograph publications that devote at least twenty-five percent of the lineage of each issue to articles and advertisements dealing with subjects of art or photography;

Just what constitutes a substantial or significant amount and who makes that decision. It sure seems as though the town may have to incur significant legal expenses the first time these questions are decided in court and then they may end up toothless.

2. While the license laws seem on their face to be a good idea there are a few things that rub me the wrong way. The license applications for both owners/managers and employees would in my understanding be public documents. According to the application requirements every single piece of information needed to perpetrate identity theft/fraud on these people would be public information.

Further, there is no legal requirement that a person have either a drivers license or social security card. It may be secret knowledge to many, but the social security program is entirely opt-in at birth, or any time thereafter,  so certain person may not have a number. The requirements for either of those in order to apply/receive a license would appear to be discriminatory. Finally, any time the government makes it standard practice to archive biometric data under any guise it's bogus. Fingerprints aren't necessary and are just one more privacy invasion.

3. Why is section 8-69 there?

Sec. 8-69. Location.
The provisions of section 503.3 of the town zoning regulations, as may be amended from time to time, are hereby incorporated by reference, and any violation of such regulations shall be deemed a violation of the provisions of section 8-61 through section 8-79, inclusive.

Section 503.3 of the zoning regulations refers only to special permit requirements. Am I missing something? The administration's ill thought and rushed plan before the P&Z will strip any remaining Adult Business references from section 503.3 if passed long before these ordinances are even voted on. What is going to happen now is when the P&Z acts, whether on the existing proposal or some other one (hopefully some other one) the council is going to have to change these ordinances to make section 8-69 relevant.

[googlevideo=http://video.google.com/videoplay?docid=-8913036254642424665&hl=en]

Mark Chu's History

I happened on a copy of the letter from Mr. Chu to the Mayor, which was Cc'd but not timely delivered or in some cases not delivered at all to commissioners and councilmen, where he references the deal he made to the Mayor.

Notice that this letter does not bear a stamp from the Town Clerk. Is it common practice for official correspondence to NOT be stamped and recorded?

As the person from the strip club side explained Mr. Chu was unable to sign this letter before it was delivered to the Mayor, presumably by his counsel, because he was out of state on business. This is a confirmed correspondence.

Note, I have removed Mr. Chu's phone number for obvious reasons.

While this letter may not appear to say a whole lot I'm informed the letter for legal reasons could not contain details and Mayor Currey was let in on it's secret details. Word has it that this deal has a very short shelf life. Once either the Masters Club or Pitkin Street start their active court battle (September) the mutual benefit derived from their coming together as businessmen and settling will no longer exist.

Something that has bugged me since the last hearing was the suggestion, though I don't recall of the top of my head if it was Dayton or Gerard who said it, that commissioners must follow the rules for ex parte communication and could not discuss the zoning application with anyone until the public hearing resumes next week. That struck me as a gag order and bad government so I looked up our ex parte ordinance.

From Section 15-13 of the ordinances:

An official, officer, or employee shall not consider any ex parte or private communications from any person, which he or she knows is or reasonably may be intended to influence unlawfully the decision on the merits of any matter where a determination is required by law to be made on the record after opportunity for hearing to interested parties.

It seems clear from the above that a communication in itself regarding the application is not a violation of the ex parte rules. In fact it seems the ex parte rules don't preclude the commissioners from talking to anyone about the application unless they know they may be about to receive a bribe, extortion attempt, threat or some similar form of unlawful influence.

The full public hearing video from Thursday night is now available at the bottom of this post, have a look.

I have long thought there was something fishy floating around this whole strip club thing. This whole thing seemed way too political which just doesn't mesh with a multi-million dollar business deal. Politicians and businessmen do not think alike. My suspicions were confirmed recently when an unnamed (until they decide to come forward officially) person from the strip club side of the aisle filled me in on a bit of the history. Here is the gist of what was conveyed.

It seems that this whole lawsuit issue came about when Masters Club LLC originally sought to follow the proper procedure to get approvals during the purchasing process of the Roberts Street location while the property was under contract. According to the source Masters Club spoke with persons of top authority in town who overstepped their proper role and jurisdiction by unequivocally telling Masters Club that there was no way their type of business could open and a permit could not even be filed.

Masters Club decided that the particular location, whose features are unmatchable in this area, was too valuable to give up on and decided to fight for their right to apply for a permit. They filed a lawsuit and here we are.

Now, this is where things begin to get bad for us as residents. The Mayor was quick to come out in the media with assurances that our zoning and ordinances were both legal and enforceable in court. To this day her public stance is that our ordinances and zoning will win in court. At the same time the ordinances were stripped from the town code and plans were made for rezoning. If our current regulations were enforceable why strip them? If our zoning was fine, why change it?

It's important to realize that this whole process has been going on since about last October and according to this person multiple olive branches have been extended to resolve the issue in a win/win manner. One such branch came in the form of a letter (which prompted a meeting in which the deal was denied by the Mayor) to the Mayor which was CC'd for the P&Z and Council. It appears that this letter, which included an offer that seems too good to refuse, was withheld from the P&Z members until recently and it's not known for sure if all council members have seen it even today. This letter, to my knowledge, despite being weeks old has not been received through the town clerk yet.

What was the offer? In exchange for allowing Masters Club to locate on Roberts Street Pitkin Street Entertainment (Kahoots) would cease to exist through a private deal between Pitkin St and Masters Club. The letter clearly said that if accepted Masters Club would be the ONLY club in town. There were no details on the plight of the Venus, though I'm sure it was discussed in the private meeting.

To date we have a moratorium that is expiring in October, no ordinances to protect our neighborhoods, a zoning plan that is guaranteed to lose in court next month and rushed and poorly thought out zoning proposals that will deny Masters Club their location at the expense of our neighborhoods.

It seemed pretty clear why the North Meadows/Prestige Park zones were a bad idea. They would totally alter the atmosphere and quality of life of the neighborhoods targeted. That plan was shot down, and I'm grateful.

Now the plan before the P&Z would do the same exact thing as the last plan but it's being given a less dangerous sounding description, removal of special permit requirements. Well, the fact is that removal of the special permit requirements with only a 1000' buffer between adult establishment requirement would open much more of the town to adult businesses than the last plan would. Consider this GIS map which I posted previously.

I understand the logic behind these zoning choices. It's true that these zone changes may in fact not allow a location that Masters Club or Pitkin St wants, but the danger is that they may create many locations that another Venus Lounge would gladly accept. It makes no sense whatever to block one or two clubs by legislating an invitation for seedier joints to come to town.

As I see it there a handful of certainties that face us.

1. Mr. Gerard is right, if we do nothing we lose anyway.

2. The choices that have been put before us are not the best choices possible.

3. Politics are obscuring the most obvious and beneficial resolution to this problem.

4. The majority of people polled think Roberts Street is the best place for a strip club in town.

5. Despite direction from the Mayor to officials to keep the public informed she herself has not been straight forward and citizens have been excluded at every step through executive mid-day meetings and secret deal sessions. I fail to see the need for executive joint P&Z/Council sessions to discuss zoning and ordinance strategy which according to Mr. Dayton at the last hearing is not being done directly for either lawsuit. At every step we hear one thing only to find the story is belied by their official actions.

To sum up my thoughts, when dealing with businessmen you must act like a businessman. When listening to politicians, remember that's what they are.

[googlevideo=http://video.google.com/videoplay?docid=1879378848442215125&hl=en]

The town retained the firm Harrall-Michalowski Associates Inc. to do a study of our current zoning and regulations concerning adult establishments and the zoning and regulations of other areas that have faced this issue previously. They presented some suggested regulatory changes to the council and zoning changes to the P&Z. Changes suggested include allowing adult establishments in the areas known as Prestige Park and the Meadows.

The topic of the night was secondary effects. Secondary effects are important, as explained by Kim Coleman (legal council for Masters Club LLC.), because a way the town can restrict the free speech rights of an adult establishment (or any other group) is by demonstrating secondary effects sufficiently harmful to warrant a restriction.

For his part Mr. Dayton, the town planner, presented a considerable compilation of police reports and incidents to councilors and commissioners demonstrating the secondary effects of the existing adult establishments. Was it enough to make the case? Kim Coleman says no.

In my discussion with Coleman after the meeting she conveyed that although secondary effects can be a valid reason for limiting free speech rights the argument doesn't work here because the town has made a mistake in the areas they chose to recommend for adult establishment use because as the maps distributed by the town's consultant show the two designated areas have a considerably greater residential concentration and therefore greater likelihood of secondary effects than the currently disputed site on Robert's Street.

In reviewing the maps I can't help but to agree with her on that point. While Prestige Park has a benefit in that the club would be somewhat cordoned off inside the industrial park it has a large negative in that it's positioning provides for no direct highway access and worse it's central location in proximity to surrounding highways guarantees that visitors would come from every direction and would have to use residential neighborhoods and streets throughout town as their route to the club which would likely translate into a lot more intoxicated persons driving in the surrounding residential areas day and night.

While the Meadows location does have some of the benefits that the Roberts Street location has, such as almost direct highway access from Rt 2, I-84 and I-91 as well as relative isolation, it's a very mixed area with about a quarter of the properties being residential. The location of the residential properties makes it unlikely that any of them would be able to escape exposure to adult establishments located in that area.
To add insult to injury the largest vacant lots to be developed are located directly adjacent to residential properties.

With the shortcomings of these areas in mind it must be considered that more than just Masters Club LLC is on the table here. The town is required to make it possible for future developers to have the opportunity to come to town and this isn't a town with a lot of real estate to consider which wouldn't have a close proximity to undesirable properties such as houses, schools and churches. In that thread these areas may not be better than the Robert's Street location but they may be the best we can get and still allow for future development as required.

So what happens now? Well have to wait and see. The lawsuit filed by Masters Club is at least temporarily halted in trade for the town paying their legal fees to date totaling over $13,000 and as my conversation with Coleman suggests temporarily is the key word so long as the town fails to provide a zone with ample development potential which would suffer less secondary effects than the Robert's Street location.

On Wednesday the 30th at 7PM there will be a public hearing on the proposed zoning changes at town hall in the council chamber. I strongly encourage anyone who can to attend and bring talking points. Especially if you live around prestige park or in or around the meadows area.

Video and documents are below.

Video of Joint Meeting of Town Council and P&Z
[googlevideo=http://video.google.com/videoplay?docid=-5783303058047656075&hl=en]

Video of Interview with Kim Coleman
[googlevideo=http://video.google.com/videoplay?docid=1159489258476165436&hl=en]

Adult regulations from other communities.
Adult Establishment Regulations - Seattle, Washington
Adult Establishment Regulations - Freetown, Massachusetts
Adult Establishment Regulations - Burlington, Iowa
Adult Establishment Regulations - Delaware County, Ohio

Maps of recommended adult zones.
Adult Establishment Map
School and Church Location Map
Proposed Prestige Park Zone
Prestige Park Land Use Map
Proposed North Meadows Zone
North Meadows Land Use Map